The very nature of the living means that contentious probate cases will continue to be a feature of the legal landscape year on year. As more and more individuals decide to challenge the Wills of relatives and loved ones, we can certainly learn from the what goes before. In 2018 there were a number of significant cases of contested probate which found their way into the courts.
In fact, the number of cases involving a challenge to a Will are both too numerous and too complex for full consideration here. However, by reviewing a select trio of the contentious probate claims to hit the courts in 2018, it is possible to alight on some useful nuggets of advice to help any person who is about to embark on the process of writing a Will, comparing probate solicitors, finding a fixed fee probate service or indeed pursuing any other area of law related to Wills, probate, and estate administration.
Be Timely
If the cases of SARGEANT V SARGEANT & ANOR [2018] EWHC 8 (CH), the claimant sought permission to make a claim under section 2 of the Inheritance (Provision for Family and Dependents) Act 1975 in relation to the £3.2 million estate left by her husband on his death in 2005. Under the terms of his Will, the majority of his estate was left as part of a discretionary trust. The beneficiaries – the man's wife and daughter – received an annual salary as part of this arrangement.
By 2009 the wife faced a significant cashflow shortage and, despite attempting to resolve this with the trustees, was unable to find a solution. As such, in 2016 she began financial provision proceedings under the Act.
However, as the case was brought outside of the accepted six-month time limit as outlined under section 4 of the Act, the judge hearing the case ruled that the woman's claim should be time-barred as it "would not be right" to allow the claim to be brought because the "very extensive delay" was caused by the woman's "own failure to take any steps".
The case illustrates the need for claimants in similar circumstances to take timely action and to seek legal advice from solicitors for contested probate at the soonest opportunity in order to explore their options.
Be Clear When Creating a Trust
In the contested probate case of NORTH V WILKINSON [2018] EWCA CIV 161, the Court of Appeal was asked to decide whether before his death an inventor had clearly created a trust in order to provide for the future of a number of individuals who had invested into his business.
In the first instance, the investors won their claim in the England and Wales High Court in 2016, where Pelling HHJ ruled "with some hesitation" that North – not then deceased – had created trusts in favour of the claimants. He granted them a default judgement of £2 million. However, North did not pay and instead obtained leave to appeal this decision. He subsequently died, leaving his two sons to conduct the appeal.
The Court of Appeal judge ruled in favour of North and his estate. He stated that there must be "a clear declaration of trust and that means there must be clear evidence from what is said or done of an intention to create a trust" and in the case concerned "there were no words suggesting the creation of a trust".
The case underlines the importance of robust legal advice when creating a trust in a Will, or through some other means, so that there can be no ambiguity and your wishes, as a testator, can be carried out in exactly the way that you want.
Be Clear When Writing a Will Involving Multi-Lingual Families
The case of GUPTA V GUPTA [2018] EWHC 1353 (CH), concerned a woman who together with her husband moved to England in the 1950s from their birth country of India.
The couple had two sons and a daughter together and in 1998 instructed a solicitor to make mirror Wills. Under the terms of the Wills, the two sons, Naresh and Rakesh, were named as executors. Furthermore, the Wills stated that the family home would be gifted to Naresh – who lived in the property with his parents and his own children – as well as an amount of money equivalent to the Nil Rate Band. A large portion of the remainder of the estate was split evenly between the two sons, with further sums left to the daughter, six grandchildren and several charities.
The husband died first, in 2009, with his estate passing to his wife who then died five years later having been mentally incapacitated for some time. In 2017, one of the sons, Rakesh, challenged his mother's Will, claiming that as she could speak only limited English she could not have properly understood the terms of the mirror Wills made in 1998 which ultimately favoured the eldest son.
The judge hearing the case found no evidence to support Rakesh's contention. He said that the parents had a close and communicative relationship, and that it would be "astonishing" if the wife did not have full knowledge of the implications of the mirror Wills. Furthermore, he added that there was no known impediment to her being able to comprehend the details of the Wills, and as similar details made in the couple's Indian Wills had not been contested by the son, the favouritism shown in the English Wills could not be seen as suspicious.
Although the validity of the mirror Wills held in this case, the details teach us the importance of ensuring clarity when it comes to Wills made in languages other than those primarily spoken by a testator or testatrix. This reduces the scope for confusion and the possibility of contentious probate claims between siblings or other beneficiaries
Oratto – Helping you Through the Process of Wills and Probate
Whether you believe that a Will should not stand or you want to challenge some aspect of the probate and estate administration process, Oratto can help you find the solicitor who is right for you.
Whether you are a testator, a beneficiary, an executor or other interested party, by choosing to find your contested probate solicitor through Oratto you can compare from an exhaustive list of specialists across the country so that you can give yourself the best possible chance of resolving the dispute in your interests.
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